CLASS 99
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THURSDAY, 5 SEPTEMBER 2013
Design protection - don't faucet into copyright, says Portuguese Court
Thanks to Nuno Sousa e Silva for an interesting article in JIPLP about the Portuguese approach to cumulation between copyright and designs, a controversial issue at present in relation to Directive 98/71 Article 17, and the ECJ Case C-168/09 Flos v Semararo on which we have previously commented, most recently in relation to Spain.
The JIPLP article reports Process 1607/10.3TBBRG.G1, Decision by Guimarães Court of Appeal of 27 February 2012 (CIFE-CIPRIANO FERNANDES DUARTE & FILHOS, LDA v BRUMA-TORNEIRAS E ACESSÓRIOS, LDA). The plaintiff had a Portugese Registered Design no. 29852, filed in 2000, which lapsed in 2004 (upper picture). The defendant made taps to several designs, some of which are shown in RCDs 767561 and 860291 (see lower picture). As with the Spanish case we discussed, the subject matter is a minimalist design (but isn't all good design, nowadays?).
The Court made two findings:
1 - "Cumulation" as per the Directive (and Regulation) only requires copyright protection where a design is actually registered. Even where a design was registered and has lapsed, there is no copyright.
2 - Copyright protection requires "art", and apparently taps, even if attractive, have too much of a function to be protectable.
That sets the standard for copyright protection pretty high in Portugal and, as Nuno comments, seems incompatible with Cases C-5/08 Infopaq and C-168/09 Flos. Have the Portuguese got it right? Clearly, some further harmonisation of EU design copyright would be desirable. Posted by: David Musker @ 17.43
Tags: copyright, cumulation, design copyright, flos, infringement, Portugal, tap,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA476
Design protection - don't faucet into copyright, says Portuguese Court
Thanks to Nuno Sousa e Silva for an interesting article in JIPLP about the Portuguese approach to cumulation between copyright and designs, a controversial issue at present in relation to Directive 98/71 Article 17, and the ECJ Case C-168/09 Flos v Semararo on which we have previously commented, most recently in relation to Spain.1 - "Cumulation" as per the Directive (and Regulation) only requires copyright protection where a design is actually registered. Even where a design was registered and has lapsed, there is no copyright.
2 - Copyright protection requires "art", and apparently taps, even if attractive, have too much of a function to be protectable.
That sets the standard for copyright protection pretty high in Portugal and, as Nuno comments, seems incompatible with Cases C-5/08 Infopaq and C-168/09 Flos. Have the Portuguese got it right? Clearly, some further harmonisation of EU design copyright would be desirable. Posted by: David Musker @ 17.43
Tags: copyright, cumulation, design copyright, flos, infringement, Portugal, tap,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA476
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
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